How to find a divorce lawyer in Cape Town, South Africa

Coming on record in court

In the normal course of events, a summons gets served on a client and the attorney enters an appearance to defend the matter by means of a formal notice of intention to defend.  In certain instances a client may go through two or three attorneys during the course of a divorce matter.  If one attorney withdraws, he does so by means of a formal notice of withdrawal as attorney of record.  The new attorney would then go on record by means of serving a formal notice of appointment as attorney of record on the other side. 

This however is not the only way of officially going on record on behalf of a client.  The other way of officially going on record is by appearing at court on behalf of the client and introducing yourself as the attorney of record.  This is the same effect as serving a notice of appointment as attorney of record on the other side.  An attorney would do this in instances where for example a client consults him/her only a day or two before a court date and he/she does not have time to officially have a notice of appointment as attorney of record served on the other side.  In such a situation, the attorney would simply go to court and introduce himself as the attorney of record.

It is very important for attorneys to understand how the ethics work when coming on record as an attorney or withdrawing as an attorney.  I had a matter recently in the Wynberg Court where my client had instructed me to withdraw as attorney of record due to lack of funds.  I had not served a notice of appointment as attorney of record yet on the other side, but had appeared on a previous occasion in court on behalf of that client.  I advised the other attorney that my instructions were to withdraw as attorney of record.  The other attorney advised me that I need not come to court to withdraw.  I advised him that I had officially come on record as attorney in court, and that it was my ethical duty to attend court to explain to the magistrate that my instructions were to withdraw.

I duly attended at court, and my withdrawal was accepted by the magistrate in chambers.  The magistrate pointed out to me that I had officially gone on record as attorney by previously appearing in court on behalf of that client, even though there had been no official notice of appointment as attorney of record served by me.  The magistrate requested me to file my formal notice of withdrawal as attorney of record on the other side, as I had come on record as attorney in court on a previous occasion, even though there had been no formal notice of appointment.  In terms of the court rules, on this notice of withdrawal as attorney, the last known address of the client must be indicated.  I have seen some attorneys draft the notice of withdrawal in the lower courts without giving the last known address of the client.  This is in fact incorrect, and not in accordance with the court rules.

An attorney can get into trouble with the law society if he or she does not at all times adhere to the ethical rules of conduct.  When withdrawing as attorney, you can only do so under the correct circumstances.  One cannot simply fail to attend court when withdrawing as attorney.  You have to follow the correct procedure and the court has to accept the withdrawal.  A magistrate will not hesitate to report an attorney to the law society for failure to comply with the ethical rules of conduct.


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